Jurisdictional Requirements: May I File for “Custody” in Colorado?
Whether you are seeking a divorce that involves minor children, or looking to establish “custody,” a common question arises: Where do I file my custody case? This question is particularly important if your case involves a parent who lives in a different state than the child, or if you just recently relocated, or are thinking of relocating, to a new state. For purposes of this article, “child” refers to child or children.
First, it is important to understand that Colorado does not use the term “custody.” Instead, Colorado allocates “parental responsibilities.” Parental responsibilities are broken down into two major components: (1) who has decision making responsibility over the child, and (2) what does the parenting time schedule look like for the child and the parents.
As noted in article 1 of this Jurisdictional Requirement series (May I File for Divorce in Colorado?), Colorado’s ability to dissolve a marriage does not necessarily mean Colorado has authority to resolve child custody issues. Colorado’s ability to make initial child custody orders is controlled by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
The UCCJEA, which has been adopted by the District of Columbia, the U.S. Virgin Islands, and every state in the United States (with the exception of Massachusetts), establishes common interstate jurisdictional laws for what state can make an initial child-custody order and modify a child custody order. This article focuses solely on initial child-custody orders, meaning no other state has entered orders regarding parenting time or decision making for your child.
For a Colorado Court to make an initial order on “allocation of parental responsibilities,” whether part of a divorce case or as a separate custody issue, Colorado must be the child’s “home state.” C.R.S. §14-13-201. To establish Colorado as the child’s home state, the child must have resided in Colorado for a period of six (6) months, or 182 days, prior to the commencement of any custody proceeding. If a child is less than six months old, home state means the state in which the child has lived in since birth. C.R.S. §14-13-102(7).
For parents who live in separate states, the state where the child lived consecutively for the last six months will be your child’s home state. It’s important to understand that a child’s “temporary absence” from their home state (ex. An extended summer vacation) does not impact the six month (182 day) requirement.
Relocation cases, whether you are new to Colorado or want to move to another state, require special attention to the UCCJEA’s “home state” requirement. If you have recently relocated to Colorado with your child, and the other parent remains in the state you moved from, the previous state (where the other parent resides) maintains jurisdiction to make an initial custody order until your child has lived in Colorado for six (6) consecutive months. In this specific example, the left-behind parent may initiate a custody proceeding in the old state during the six month waiting period.
There are additional grounds a Colorado Court can use to make an initial custody order. Although rare, as “home state” is the priority requirement in initial child custody proceedings, the Court may use the following bases: significant connection, more appropriate forum, and vacuum jurisdiction.
Significant connection is used in Colorado when a child has no home state or when the child’s home state declines to exercise jurisdiction. The child’s “home state” may decline to exercise jurisdiction because neither parent nor the child live in the home state. In addition, “the child and the child’s parent, or at least one parent, has a significant connection with [Colorado] other than mere physical presence; and substantial evidence is available in [Colorado] concerning the child’s care, protection, training, and personal relationships.” C.R.S. §14-13-201(b). Significant connection may be utilized if both parents relocated to Colorado with the child and want to initiate an initial custody proceeding, but the child has not lived in Colorado for six (6) months.
Finally, “more appropriate forum” may be used when a Court with home state jurisdiction or significant connection jurisdiction declines to exercise jurisdiction because Colorado is the more appropriate forum. “Vacuum” jurisdiction is the last resort and is only used when no state satisfies any of the other jurisdictional bases listed above. These last two are often used when families relocate frequently and briefly stay in one place.
Colorado is likely the appropriate state to begin your initial allocation of parental responsibilities (custody) case if your child has resided in Colorado for six (6) or more months or both parents and the child now reside in Colorado.
Note: Brittaney McGinnis is no longer with the law firm of Frascona, Joiner, Goodman and Greestein, P.C.